Sudduth v. Central of Georgia Ry. Co.

• Decision Date: 20 December 1917
• Docket Number: 5 Div. 685
• Citation: 77 So. 350,201 Ala. 56
• Parties: SUDDUTH v. CENTRAL OF GEORGIA RY. CO.
• Court: Alabama Supreme Court

77 So. 350

201 Ala. 56

SUDDUTH v. CENTRAL OF GEORGIA RY. CO.

5 Div. 685

Supreme Court of Alabama

December 20, 1917

Appeal from Circuit Court, Lee County; Lum Duke, Judge.

Action by C.J. Sudduth against the Central of Georgia Railway Company in trespass and on the case. Judgment for defendant and plaintiff appeals. Affirmed.

James C. Phelps, of Scottsboro, for appellant.

Barnes & Walker, of Opelika, for appellee.

ANDERSON C.J.

This is the second appeal in this case. 73 So. 28. Upon the second trial the case was tried upon counts 7, 8, 9, and 10, and which were added after the first trial, and after the reversal of the cause upon the former appeal. Count 7 is for trespass, while counts 8, 9, and 10 are in case.

The plaintiff, in order to have recovered under the trespass count, had to show a prior possession of the land upon which the side track was laid, actual or constructive. There was no proof of an actual possession by the plaintiff, though he contends that he had the constructive possession under his title; that is, the fee to the street subject to the use of same by the public. It may be conceded but which we do not decide, that if the plaintiff had the title to the entire street he could maintain trespass as against a mere wrongdoer, although the street had been dedicated as a public highway. L. & N.R.R. Co. v Higginbotham, 153 Ala. 334, 44 So. 872. But we cannot say, as matter of law, that the plaintiff was, under the evidence offered by him as to his title and possession, entitled to the general charge, under count 7, even if the defendant was a wrongdoer. In the first place, there was evidence from which the jury could infer that all the defendant did was upon that half of the street opposite, and not attingent, to the plaintiff's property. We do not think that the plaintiff's proof of title gave the fee to the entire street, and, at most, it did not go beyond the center of same. North Ala. R.R. Co. v. Davis, 185 Ala. 193, 64 So. 606; So. Bell Tel. Co. v. Francis, 109 Ala. 224, 19 So. 1, 31 L.R.A. 193, 55 Am.St.Rep. 930; City of Demopolis v. Webb, 87 Ala. 659, 6 So. 408.

Counts 8, 9, and 10 do not seem to proceed under section 227 of the Constitution of 1901, as they charge that the track was wrongfully laid, and not that it was laid under a privilege or franchise permitting such construction or operation. They therefore proceed either under section 235 of the Constitution, or upon the theory that the thing done was a wrongful obstruction, and amounted to a public nuisance in obstructing Front or Clanton street. They also set up that the ingress and egress of plaintiff to and from his home and brickyard was prevented or greatly interfered with, and it may be that they charge an injury different in kind from that suffered by the public generally. A.G.S.R.R. Co. v. Barclay, 178 Ala. 124, 59 So. 169. Though this is a question we are not called upon to decide, and may assume the sufficiency of said counts, as the trial court held them sufficient and not subject to demurrer, it is sufficient to say that the trial court did not err in refusing the plaintiff the general charge as to these counts. In the first place, it was for the jury to determine whether or not plaintiff sustained special damage, different from that suffered by the public generally; and, as the plea of the statute of limitations was in, the jury could have found that the act of obstructing the street was barred, and that the subsequent maintenance of the sidetrack was not a new or continuing wrong, so as to damage the plaintiff specially. Whaley v. Wilson, 112 Ala. 627, 20 So. 922; Code 1907, § 4840. In other words, there was proof that when the siding was first placed along the street it interfered with travel, but that it was very soon remedied. The trial court did not, therefore, err in refusing the general charge for the plaintiff upon any one of the counts, or as to the entire complaint. The statute of limitations was a good defense, if the complaint proceeded under section 235 of the Constitution, or was merely for the creation and maintenance of a nuisance. The gravamen of the action of the count or counts which attempted to invoke this section was for the erection or construction of the sidetrack, and not for the maintenance of same. Hamilton v. Ala. Co., 195 Ala. 438, 70 So. 737.

Moreover, we are not prepared to say that the trial court could be reversed for refusing charge 1, requested by the plaintiff, and which was intended as the general charge, as it is perhaps bad in form. While it has the hypothesis as to believing the evidence, it is coupled up with a peremptory instruction that "it only remains for you to assess his damages." This at least rendered it misleading, not being preceded by the condition that if the jury should find for the plaintiff.

There was no error in permitting ...